Banking (Foreign Exchange) Regulations (Amendment)

Administered by Department of the Treasury

Legislation au F1996B01490 Regulations Not in force Legislative Instrument

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Statutory Rules

1974 No. 56

REGULATION UNDER THE BANKING ACT 1959-1973.*

WHEREAS by instrument under sub-section 29 (1) of the Banking (Transitional Provisions) Act 1959 published in the Gazette on 14 January 1960, the Governor-General declared that, notwithstanding the repeal effected by section 4 of the Banking Act 1959, the Banking (Foreign Exchange) Regulations in force under the Banking Act 1945-1953 immediately before the commencement of Part VII of the Banking (Transitional Provisions) Act 1959 should continue in force as if they were made under the Banking Act 1959:

AND WHEREAS by virtue of paragraph 29 (1) (a) of the Banking (Transitional Provisions) Act 1959-1973, those Regulations may be amended or repealed by regulations under the Banking Act 1959-1973:

AND WHEREAS by section 39 of the Banking Act 1959-1973, it is provided that, where the Governor-General is satisfied that it is expedient so to do, for the protection of the currency or of the public credit of the Commonwealth, or in order to conserve, in the national interest, the foreign exchange resources of the Commonwealth, he may make regulations, not inconsistent with that Act, making provision for or in relation to the control of foreign exchange and, in particular, but without limiting the generality of the foregoing, for or in relation to certain matters specified in that section:

AND WHEREAS I, the Governor-General of Australia, acting with the advice of the Executive Council, am satisfied that it is expedient, for the protection of the currency and of the public credit of the Commonwealth, and in order to conserve, in the national interest, the foreign exchange resources of the Commonwealth, to make the following Regulation:

NOW THEREFORE I, the Governor-General, acting with the advice of the Executive Council, hereby make the following Regulation under the Banking Act 1959-1973.

Dated this tenth day of April, 1974.

Paul Hasluck

Governor-General.

By His Excellency’s Command,

(Frank Crean)

Treasurer.

 

* Notified in the Australian Government Gazette on  , 1974.

11958/74—Price 6c 10/18.3.1974


Amendments of the Banking (Foreign Exchange) Regulations*

Offences.

Regulation 42 of the Banking (Foreign Exchange) Regulations is amended by omitting sub-regulations (2) and (3) and substituting the following sub-regulations:—

“(2) Subject to sub-regulations (3) and (4) where a person has been convicted by a court of an offence against these Regulations, the court may, if it thinks fit, order the forfeiture of all or any of the articles in respect of which the offence was committed.

“(3) The court shall not make an order under sub-regulation (2) for the forfeiture of any articles if a person satisfies the court—

(a) that he is the owner of those articles; and

(b) that he was not, in any way, directly or indirectly knowingly concerned in, or party to, the commission of the offence.

“(4) The court shall not make an order under sub-regulation (2) unless—

(a) in a case where it appears to the court that a person other than the person convicted of the offence is the owner of all or any of the articles in respect of which the offence was committed—the court has caused notice of the prescribed particulars to be given to the first-mentioned person; or

(b) in a case where it appears to the court that the owner of all or any of the articles in respect of which the offence was committed is not known—the court has caused notice of the prescribed particulars to be given by public advertisement in such manner, at such times, and in such places as the court considers appropriate

“(5) For the purposes of sub-regulation (4) the prescribed particulars are—

(a) particulars of the offence;

(b) particulars of the articles in respect of which the offence was committed; and

(c) particulars of the time, date and place at or upon which the court proposes to consider any application in relation to the forfeiture of the articles in respect of which the offence was committed.

“(6) In this regulation ‘the articles in respect of which the offence was committed’ means the gold, Australian currency, foreign currency or securities in respect of which the offence was committed.”.

 

* Statutory Rules 1946, No. 191, as amended by Statutory Rules 1947, Nos. 65 and 102: 1948, Nos. 39 and 165; 1950, No. 46: 1952 and 80; 1953, No. 24; 1954, No. 96; 1960, No 8; 1965, No. 168; 1967, No. 70; 1970, No. 130; and 1973, Nos. 72 and 197.

Printed by Authority by the Government Printer of Australia

Overview

The Banking (Foreign Exchange) Regulations 1974 is a legislative instrument enacted under the Banking Act 1959-1973 to address issues related to the regulation of foreign exchange transactions within Australia. This regulation was introduced to ensure the protection of the national currency and public credit, as well as to conserve foreign exchange resources in the national interest. The regulation was made by the Governor-General of Australia, acting on the advice of the Executive Council, and it specifically amends Regulation 42 to refine the process for the forfeiture of articles involved in offences against the Regulations, ensuring that the rights of uninvolved owners are protected. The policy objective of the regulation is to maintain control over foreign exchange activities in a manner that safeguards the economic stability and resources of Australia.

Scope and Application

The Banking (Foreign Exchange) Regulations 1974, established under the Banking Act 1959-1973, apply to all persons and entities engaged in transactions involving foreign exchange within Australia. These regulations are designed to ensure the protection of the Australian currency and public credit, as well as the conservation of foreign exchange resources for the national interest. The regulations cover a broad spectrum of entities, including banks, financial institutions, and individuals, and extend to all foreign exchange transactions conducted in Australia or involving Australian currency. The geographic reach of these regulations is nationwide, applying uniformly across the Commonwealth. The Regulations include provisions for the forfeiture of articles such as gold, Australian currency, foreign currency, or securities in cases where a person has been convicted of an offence against these Regulations, with specific procedural requirements for such forfeitures. Notably, the Regulations allow for the exclusion of forfeiture if the owner of the articles can demonstrate no involvement in the offence. This legislative instrument extends its application through subordinate instruments, allowing for amendments and updates as needed to adapt to changing economic conditions and regulatory needs.

Key Provisions

The primary operative sections of these regulations pertain to the forfeiture of articles involved in offences against the Banking (Foreign Exchange) Regulations. Regulation 42 outlines the conditions under which a court may order the forfeiture of articles such as gold, Australian currency, foreign currency, or securities. According to sub-regulation (2), a court may order the forfeiture of all or any of these articles if a person has been convicted of an offence against the Regulations. However, sub-regulation (3) stipulates that the court shall not make such an order if the person claiming ownership can demonstrate that they were not knowingly involved in the offence. Additionally, sub-regulation (4) mandates that the court must provide notice of the forfeiture proceedings to the owner of the articles or, if the owner is unknown, to advertise the particulars in a prescribed manner. These regulations impose specific obligations on the courts and the parties involved in cases of alleged breaches. The courts are required to consider the evidence and circumstances before deciding whether to order the forfeiture of the articles. The person claiming ownership must provide evidence to prove their innocence and lack of involvement in the offence. The court is also obligated to notify the relevant parties of the forfeiture proceedings, ensuring transparency and fairness in the process. Failure to comply with these obligations could result in procedural errors and potential miscarriages of justice. The regulations impose severe penalties for breaches of the foreign exchange control provisions. Under Regulation 42, the court has the authority to order the forfeiture of articles involved in an offence, effectively penalising those found guilty. While the specific monetary penalties are not detailed in the text, forfeiture of assets can have significant financial consequences for the individuals or entities involved. Additionally, the regulations may be accompanied by other penalties or consequences as prescribed by the broader Banking Act 1959-1973, which could include fines, imprisonment, or other legal sanctions for more severe breaches.

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